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August 31, 2004

Seeking restitution on restitution

Because restitution orders are becoming more common in state and federal courts, many have wondered whether and how Blakely might impact such orders. As noted here, the Tenth Circuit previously spoke quickly (perhaps too quickly) to this issue in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004).

Yesterday the Ninth Circuit in US v. DeGeorge, 2004 WL 1920922 (9th Cir. Aug. 30, 2004), contributed a view on the restitution issue in a case applying an older federal law on victim restitution. Here's what the court said:

We first review the restitution order made by the district court pursuant to the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663-3664, which is unaffected by Blakely. See, e.g., United States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994) ("[R]estitution determinations under the VWPA are quite different from sentencing determinations under the Sentencing Guidelines.").

Because I believe that the VWPA, passed by Congress in 1982, made an award of restitution wholly discretionary, the Ninth Circuit may be right that Blakely does not affect its application. However, in 1996, Congress passed the Mandatory Victims Restitution Act (MVRA), which now makes restitution mandatory for particular crimes, and thus the Blakely analysis might be different under that statute. See generally US v. Alalade, 204 F.3d 536, 538-41 (4th Cir. 2000) (discussing changes in sentencing court's discretion after passage of MVRA). And, of course, state restitution provisions will need to be distinctly examined to see if and how their structure and terms could be impacted by Blakely.

In the end, as will be the case with so many post-Blakely issues, a lot of litigation may be needed to sort this all out.

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Comments

i am a defendant. i enjoy reading your blogs.
i have a question. federal case- restitution
imposed by the judge in the amount of half a million, 10 percent of my salary when released.
will i have to pay this the rest of my life?
thanks

Posted by: ROSCO | Mar 9, 2005 5:17:28 PM

I am a defendant and find your legal
information and case law excellent.

I was sentanced on 02/25/1994 on one
count of mail fraud title section 18
USC 1431.

I served federal incarceration and then
supervised release which then ended
10/17/1998.

Restitution was ordered in my sentance,
which I paid while incarcerated and on
supervised release.

Upon release from federal supervision,
I owed a large balance of restituion
that I am unable to pay as I have a
young child who is lifetime disabled.

Federal probation had me then executed
a promissory note worded "in settlement
thereof" and confession of judgment
in favor of the victim.

My sentancing Judge signed off on them
to complete my sentance release.

I have paid the monthly settlement note
payments from 11-05-1998 to date without
default or being late.

In September 2004, the new U.S. attorney
for my sentancing distrcit filed a federal
lien agaisnt me in my home county and state.

As a basis for there action, they site the
MVRA ACT of 1996 and statues.

If I was sentanced in 1994 and executed a
note "in settlement thereof" and have not
defaulted, does this statue apply to me
and allow them to file a federal lien??

Needless to say, a federal lien cripples
your total financial life..

Posted by: Don | Jun 1, 2005 3:16:57 PM

my posting today reflected my email
address incorrectly.

my correct email address is:

paperbuyers@aol.com

Thank you

Don

Posted by: don | Jun 1, 2005 7:28:24 PM

I have racked my brain to try and find the answer to this question and cannot and was hoping for any possible help....
Someone that I know plead guilty to a plea bargain in 2001 in Illinois to aggravated battery with a firearm, aggravated unlawful restraint,and possession of a weapon by a felon. They were not on bond or bail at the time.
(2) 10 year sentences ran concurrent at 50% day by day, and 17 years mandatory consecutive at 85%. The attorney at the time said he could not by law make it a mandatory consecutive sentence but now the law has been changed to where the crime is no longer mandatory consecutive.
Can you go back into now and get them ran consecutive?? If so, what do you have to do to do this??

Posted by: Lisa | Feb 28, 2008 5:24:32 PM

After supervised release, will the wage garnishment continue? Does it convert to civil vs criminal? Can you direct me to any case law on this issue or an attorney who can assist?